Trade Usages in ICC Arbitration

Fabien Gelinas (ed), Trade Usages and Implied Terms in the Age of Arbitration (Oxford University Press 2016)

22 Pages Posted: 13 Oct 2016

See all articles by Emmanuel Bernard Jolivet

Emmanuel Bernard Jolivet

International Chamber of Commerce (ICC)

Giacomo Marchisio

Grande Stevens - Studio Legale Associato

Fabien Gelinas

McGill University

Date Written: October 6, 2016

Abstract

In this chapter’s analysis of ICC arbitral awards, two different interpretations of usages can be observed: on the one hand, the strict notion of a trade usage as a repeated practice; on the other, a broad notion of usage as encompassing both traditional trade usages and general principles of the law, distilled through the comparison of various legal systems. Noting the ability of usages to adapt quickly to societal changes, the chapter concludes that these two interpretations of usages seem to serve two different purposes: the restrictive interpretation serves to establish the meaning and content of the parties’ contract, while the broad interpretation ensures that the governing law is applied in a way that takes account of the international context in which the contract was made. Both interpretations contribute to a conception of usages as a set of general rules for international arbitration.

Keywords: Usages, ICC, international arbitration, scope of usage, general principles of law, flexibility

Suggested Citation

Jolivet, Emmanuel Bernard and Marchisio, Giacomo and Gelinas, Fabien, Trade Usages in ICC Arbitration (October 6, 2016). Fabien Gelinas (ed), Trade Usages and Implied Terms in the Age of Arbitration (Oxford University Press 2016), Available at SSRN: https://ssrn.com/abstract=2848956

Emmanuel Bernard Jolivet

International Chamber of Commerce (ICC) ( email )

Financial Services & Insurance Commission
38 Cours Albert 1er
Paris, France 75008
France

Giacomo Marchisio

Grande Stevens - Studio Legale Associato ( email )

Via del Carmine 2
Torino, 10122
Italy

Fabien Gelinas (Contact Author)

McGill University ( email )

3644 Peel Street
Montreal, Quebec H3A1W9
Canada

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